Applying for Citizenship – Children who have been abandoned in Australia
Children who have been abandoned in Australia by their parents are automatically granted Australian citizenship under section 14 of the Australian Citizenship Act 2007 (‘ACA’). However, the definition of what is an ‘abandoned child’ is both more limited and more expansive than it initially appears.
Section 14 of the ACA states that ‘a person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved’.
What is an ‘abandoned child’?
The abandoned child provision only applies where the child has been abandoned and the parents and their status are unknown. In such circumstances, the presumption is that the child was born in Australia and would be taken to have been an Australian citizen by birth (unless or until proved otherwise).
Nicky v Minister for Immigration and Border Protection [2015] FCA 174 (5 March 2015)
n this case Nicky v Minister for Immigration and Border Protection, the applicant had been ‘abandoned’ by his mother in Australia, after having arrived in Australia when he was 16 years old on a temporary visa. He had been born in Indonesia and had provided a birth certificate and passport issued by the Indonesian government confirming his place of birth.
After his mother was deported, she refused to take the applicant back to Indonesia with her.
Not an ‘abandoned child’ for citizenship purposes if born overseas
The legislative objective of the abandoned child citizenship provisions was so that any children who had been found abandoned in Australia were not stateless. The court in this case found that ‘in the absence of clear words to the contrary, there is no self-evident reason why either section should be construed as entitling a child found abandoned in Australia to Australian citizenship in circumstances where the country of birth and nationality of the child are known’.
Therefore, in this case, the applicant’s birth certificate and passport clearly showed that he wasn’t born in Australia. Therefore, he was unable to rely on the abandoned child citizenship provision.
Although the provisions appear somewhat ambiguous, this case law suggests that ‘the contrary; refers to proof that a person is not an Australian citizen rather than proof that they were not abandoned.
How does an ‘abandoned child’ get Australian citizenship?
Citizenship for children abandoned in Australia can apply for evidence of Australian citizenship under section 37 of the ACA. The child will then be given a notice stating that they are Australian citizens.
However, if the application for evidence of Australian citizenship is refused, there are no review rights at the Administrative Appeals Tribunal.
Are there any other options for an ‘abandoned child’ to get Australian citizenship?
The Department recognises that the circumstances in which the abandoned child citizenship provision applies are quite rare. For situations where the child is abandoned but their origins are known, it is recommended that they make an application for a Child (subclass 802) visa under the vulnerable child provisions.
Furthermore, even if the child’s parentage is not known, the best option for the abandoned child may still be the Child (subclass 802) visa, as if further information about their parents are discovered in the future that goes against the presumption of citizenship, the child may no longer be considered a citizen.
How Can Agape Henry Crux Help You?
Australian citizenship can be very complex - if you want to find out more about your citizenship application, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02 8310 5230 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin, Cantonese, Indonesian, Burmese, and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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